In a so-far-sleepy Supreme Court term, Justice Sonia Sotomayor let loose a scorching dissent in a case involving the Fourth Amendment and police conduct on Monday. The majority opinion, Sotomayor wrote, “says that your body is subject to invasion while courts excuse the violation of your rights.”
Justice Clarence Thomas wrote the court’s opinion on behalf of five justices, including all of the other Republican appointees and Democratic appointee Justice Stephen Breyer. Justice Ruth Bader Ginsburg joined most of Sotomayor’s dissent, as well as a separate dissent by Justice Elena Kagan.
Sotomayor’s remarkably direct dissent went far beyond the specific question of the case, tapping directly into the zeitgeist of the Black Lives Matter movement and criminal justice reform. It cites the Department of Justice’s report from Ferguson, Missouri, on police misconduct and books like Michelle Alexander’s “The New Jim Crow,” Ta-Nehisi Coates’ “Between the World and Me” and James Baldwin’s 1963 classic “The Fire Next Time.”
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Of people “routinely targeted by the police,” Sotomayor wrote, “Until their voices matter too, our justice system will continue to be anything but.”
The case concerns Edward Strieff, who was stopped while leaving a house a police officer was watching on suspicion of drug activity. When the officer discovered Strieff had an outstanding warrant for a minor traffic violation, he searched Strieff and found methamphetamine. The court had to decide whether the drugs found on Strieff could be used as evidence or whether such evidence was disqualified by the Fourth Amendment’s prohibition on “unreasonable searches and seizures.”
Evidence in the Strieff case, Thomas wrote for the majority, was “admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”
Sotomayor retorted, “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.”
Early in her career, Sotomayor worked as a prosecutor in Manhattan — not exactly the redoubt of the soft on crime. Still, she wrote, in the only portion of the dissenting opinion Ginsburg didn’t join, “Writing only for myself, and drawing on my professional experiences, I would add that unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name.”
She added that the fact that the officer did in fact find drugs on Strieff didn’t matter: “A basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right.”
She described at length all the encroachments a police officer can lawfully make on an individual, from invasive physical searches to handcuffing to a lasting arrest record.
Strieff is white, Sotomayor noted, but that doesn’t mean racial profiling isn’t at the heart of this case. “The white defendant in this case shows that anyone’s dignity can be violated in this manner … But it is no secret that people of color are disproportionate victims of this type of scrutiny … For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”
Validating “the talk” under color of law, Sotomayor concluded, “implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”